D.O.F:17/04/2019
D.O.O:21/11/2022
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.No.72/2019
Dated this, the 21th day of November 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Mathayi.C.S
S/o Xavier Chellam Tharayil(House) : Complainant
Parappa.P.O – 671533
Kasaragod
(Adv:M. Ramesh)
And
Manoj Varkey
S/o Varkey
Manat (H) Parappa : Opposite Party
P.O. Parappa – 671533
(Adv: Benny Jose)
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The complaint is filed for compensation on the ground of the service deficiency on the part of the opposite party.
The facts of the case in brief is that the complainant had entrusted the extension work of his residential house to the opposite party as per an oral agreement, as per which the opposite party agreed to construct 1 room,1 kitchen, work area,3 bath rooms, car porch, sit out and main slab concrete work to the existing house, for an amount of Rs.10,50,000/-..But the opposite party did not executed the construction work as per the terms and conditions of the agreement. It is submitted that when the bamboo pillars of the centering are removed after concrete work , the central part of the main slab fell down and some cracks are seen and there was leakage. The pillar of the car porch was seen to be having a bend. At the lower side of the stair case, the steel rodes were seen due to the defect in the concrete. The laterite stones used for construction were of a lower quality. The masonry walls are not cement pointed. The cement was not used in proper apportion. No belt beam or lintel is installed to the foundation which was constructed at a site after levelling of a well existed therein. The opposite party unnecessarily removed the doors and windows of the existing house against the agreement. Also the tiles fixed in the hall and sit out were removed. Out of the Rs.10,50,000/- agreed, an amount of Rs.6,09,000/-is already received by the opposite party from the complainant. At the time of the construction of the main slab the opposite party demanded Rs.2,50,000/- out of the balance amount but the complainant informed that the balance amount would be paid only as and when the work is finished.
The opposite party did not finish the construction as per the agreement due to which the complainant is put to several hardships and loss. Hence this complaint is filed for an order directing the opposite party to pay Rs,10,000,00/- towards compensation and costs.
The opposite parties entered appearance and filed written Version. As per the version of the opposite party, the complaint is false, frivolous and not maintainable.
It is admitted that there was an oral agreement for the renovation of the house of the complainant. The renovation contract was to concrete the entire roof after removing the asbestos sheets and add 3 bath rooms and one room. The height of the slab was also fixed as 3 meters. The plan was supplied to the opposite party for compliance. When the construction started the complainant changed his stand and demanded opposite party to expand the front portion of the house for the construction of a car porch, which was complied with. When the construction of the toilet was started, the complainant instructed to change the measurement and accordingly, its size was enhanced. As per the original terms and condition of the agreement the work was for Rs.10,50,000/-. The work was started on 26.01.2019 and before that a shed was constructed by the opposite party by spending Rs.46,000/- for the shifting of the complainant’s residence, which was out of the agreement. Out of the Rs.10,50,000/- agreed, an amount of Rs .5,49,000/-only is received by the opposite party from the complainant. As per the changes in the plan construction of about 350 sq. feet more area is added. There is no leakage in concrete. The iron bar is visible in staircase is quite natural and such patches could be covered when plastered. For expansion of veranda by one meter as per agreement, naturally the sit out was to be demolished and there can be no complaint of breaking of tiles. When the opposite party requested for Rs.2,50,000/-out of the balance amount, the complainant refused to give and asked to quit stating that he will not allow to take the remaining construction materials which were kept in the plot for further works. The complainant detained those materials and utilised for construction with the help of some other workers. The above act of the complainant is illegal and high handed. Due to which, the opposite party suffered great loss. An amount of Rs.3,25,000/- is still to the opposite party from the complainant.
There is no negligence or service deficiency on the part of the opposite parties. The complainant is not entitled for any relief as prayed for and the complaint is liable to be dismissed.
An expert commissioner was appointed to note and report the subject matter of this case, who filed his report on 15. 12.2020, after inspection on 20.10.2019.
The complainant filed proof affidavit in lieu of chief examination and documents Ext. A 1 to Ext. A 6 and Ext C1 are marked . The PW 1 was cross examined .The Ext - A1 is the Bank Statement, Ext A2 is the purchase bill dated 25.08.2020 for Rs.22,050/- Ext. A 3 is the purchase bill dated 25.08.2020 for Rs.40,200/-, Ext A4 is the Tax invoice dated 25.08.2020, for Rs.9,782/-, Ext A5 is the Tax invoice dated 10.08.2020, for Rs.101250/- Ext. A6 is the Tax invoice dated 11.08.2020., Another document Ext. A7 is marked during the cross examination of the DW1. Ext.A7 is a copy of the complaint dated 05.04.2019, filed by the opposite party before Vellarikkundu Police Ext.C1 is the report of the Expert Commission.
Another witness Smt. Santha Malurkayam also examined as PW2.
The opposite party filed proof affidavit in lieu of chief examination as DW1 and document Ext. B1 and marked . He was cross examined as DW1. Ext.B1 is a copy of the approved plan of the work. The expert commissioner is examined as DW2.
Based on the pleadings and evidence of the rival parties in this case the following issues are framed for consideration.
- Whether there is any service deficiency on the part of the opposite party ?
2. If so, what is the relief?
For convenience, both these issues are considered together.
Here the specific case of the complainant is that he had entrusted the extension work of his residential house to the opposite party as per an oral agreement, as per which the opposite party agreed to construct 1 room,1 kitchen, work area,3 bath rooms, car porch, sit out and main slab concrete work to the existing house, for an amount of Rs.10,50,000/-..But the opposite party did not executed the construction work as per the terms and conditions of the agreement. It is submitted that when the bamboo pillars of the centering are removed after concrete work , the central part of the main slab fell down and some cracks are seen and there was leakage. The pillar of the car porch was seen to be having a bend. At the lower side of the stair case, the steel rode were seen due to the defect in the concrete. The laterite stones used for construction were of a lower quality. The masonry walls are not cement pointed. The cement was not used in proper apportion. No belt beam or lintel is installed to the foundation which was constructed at a site after levelling of a well an existed therein. The opposite party unnecessarily removed the doors and windows of the existing house against the agreement. Also the tiles fixed in the hall and sit out were removed. Out of the Rs.10,50,000/- agreed , an amount of Rs. .6,09,000/-is already received by the opposite party from the complainant. At the time of the construction of the main slab the opposite party demanded Rs.2,50,000/- out of the balance amount but the complainant informed that the balance amount will be paid only as an when the work is finished. The opposite party did not finish the construction as per the agreement due to which the complainant is put to several hardships and loss.
The opposite party admitted that there was an oral agreement for the renovation of the house of the complainant. The renovation contract was to concrete the entire roof after removing the asbestos sheets and add 3 bath rooms and one room. The height of the slab was also fixed as 3 meters. The plan was supplied to the opposite party for compliance. When the construction started the complainant changed his stand and demanded opposite party to expand the front portion of the house for the construction of a car porch, which was complied with. When the construction of the toilet was started, the complainant instructed to change the measurement and accordingly, its size was enhanced. As per the original terms and condition of the agreement the work was for Rs.10,50,000/-. The work was started on 26.01.2019 and before that a shed was constructed by the op opposite party by spending Rs. 46,000/- for the shifting of the complainant’s residence, which was out of the agreement. Out of the Rs.10,50,000/- agreed , an amount of Rs .5,49,000/-only is received by the opposite party from the complainant. As per the changes in the plan construction of about 350 sq. feet more area is added .There is no leakage in concrete. The iron bar is visible in staircase is quite natural and such patches are covered when plastered. For expansion of veranda by one meter as per agreement , naturally the sit out was to be demolished and there can be no complaint of breaking of tiles.
In the document Ext.C1 Report, even though the Expert Commissioner stated that no major defects are seen in the construction except some minor issues when he was examined as DW2 , during cross examination , he admitted he had noticed improper workman ship and lack of super vision in the construction work. Further, even though the commissioner reported that detailed examination and analysis is required to evaluate the cement content in the concrete and mortar, he admitted during cross examination that there was crack in the slab. He also deposed to the effect that “it is true to say that there is chance of leakage of water stored in the crack, when the slab expands due to sunlight.”
In the Report Ext.C1, it is stated that the opposite party produced a copy of approved plan before the commission. Agreed schedule and specification of work to be carried out is not produced by both the parties. The expert commissioner states that the construction work is done not as per the approved plan and estimate.
The opposite party submit that he had done the work for Rs, Rs. 8,70,000/-and he is entitled to get Rs.3,21,000/- after deducting the amount of Rs.5,49,000/- received. But he has not produced any document to show that he had done work of that much amount. No details of construction made available for verification.
But the complainant submit that he had already paid a total amount of Rs.6,09,000/-.
The Ext. A1 the bank statement together with the copy of message dated 26.02.2019 would show that the complainant had paid a total of Rs.6,09,000/- as on 26.02.2019. He also produced certain purchase bills and receipts as Ext A2 to A5, to show that he had spend further amount for the completion of the construction.
Therefore with the facts and circumstances of the case , this commission is of the view that there is service deficiency on the part of the opposite parties .The complainant estimates his loss to the tune of Rs.10,00,000/-. Bu he did not produced evidence for such a huge loss. The commission hold that an amount of Rs.50,000/- will be a reasonable compensation in this case.
In the result the complaint is allowed in part, directing the opposite party to pay Rs.50,000/- (Rupees Fifty thousand only) to the complainant as compensation and Rs. 5,000/- (Rupees Five thousand only) towards costs.
Time for compliance is 30 days from receipt of the copy of the Judgement.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Bank statement
A2 & A3- Purchase bill
A4- Tax invoice
A5- Tax invoice
A6- Tax Invoice
A7- Copy of the complaint Dt: 05/04/2019
B1- Copy of the approved plan of the work.
C1- Expert Commission report
Witness Examined
Pw1- Mathai.C.S
Pw2- Shantha Maloorkkayam
Dw1- Manoj Varkey
Dw2- T.P. Youseph
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
